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2017 DIGILAW 101 (GAU)

Sainpha Nayak @ Saif v. State of Assam

2017-01-23

AJIT SINGH, SUMAN SHYAM

body2017
JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Sainpha Nayak @ Saifa has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5000/- with default stipulation. He has also been convicted under Section 341 of the Indian Penal Code and has been sentenced to undergo imprisonment for 1(one) month. The sentences are directed to run concurrently. 2. The victim of the incident was Mitku Kumar, his brother-in-law, who married the sister of the appellant - Juri Kumar (DW-1). Mitku was about 34 years of age at the time of his death. 3. According to the prosecution case, Mitku was a cycle mechanic and he used to torture Juri both mentally and physically. Mitku was a chronic alcoholic and frequently tortured Juri under the influence of alcohol. One day-just about 3 days prior to the occurrence - Mitku assaulted Juri with a dao being influenced by alcohol. She was taken to the North Lakhimpur Civil Hospital at Sabati and a case was lodged against Mitku in the police station. He was also arrested. But subsequently, the families of Mitku and Juri came to a mutual understanding and Mitku was released from custody. Coming out of the police custody, Mitku again went to the house of Juri and assaulted her father. The appellant who was tolerating the misdeeds and misconduct of his brother-in-law for a long time, could not keep himself compose any longer and on 20/2/2009, when Mitku went to see Juri in hospital and was returning home with the appellant and Tanka Bora (PW-1) on bicycles at about 4 p.m., the appellant assaulted him with a dao on the road by restraining him and as a result, Mitku died on the spot. The appellant and Tanka then went to the house of Upen Roy (PW-9) and Bina Roy (PW-4) and there the appellant washed the blood from his hands and face and left their house leaving the bicycle in the backyard. Upen was not present in the house at that time and his wife-Bina-was only present. 4. Thereafter, both the appellant and Tanka went to the house of Dipali Dutta (PW-5). Upen was not present in the house at that time and his wife-Bina-was only present. 4. Thereafter, both the appellant and Tanka went to the house of Dipali Dutta (PW-5). There the appellant washed his cloths and taking the blessings of Dipali by touching her feet, he went to the Khelamati Out Post of Police Station North-Lakhimpur and surrendered before Nirmal Biswas (PW-12)-the then In-Charge of that out-post. Nirmal made a General Diary Entry-Exhibit-5 and informed the Police Station North-Lakhimpur. Dilip Dutta (PW-14) who was the then Officer–In-charge of the Police Station North-Lakhimpur, came to the outpost and arrested the appellant. 5. In the meantime, Padmeswar Chutia (PW-2), Rajesh Kurmi (PW-3) and Munindra Kumar Bhagawati (PW-6) also reached the place of occurrence and saw the dead body of Mitku. Nripen Buragohain (PW-11) who was performing contract works under Public Works Department for construction of road in the locality was also informed by his labourers that a dead body was lying on the road and Nripen also informed the matter to Dilip. Dilip arrived at the place of occurrence and seized a pair of chappals (Material Exhibit-Ka), one khukri (Material Exhibit-Kha) and a cap (Material Exhibit-Ga) vide Exhibit-2 seizure list in presence of them and got the inquest done over the dead body of Mitku. He also seized the bi-cycle from the house of Upen in his presence vide Exhibit-3 seizure list whose house was shown to the police by Sunu Munda (PW-8) and recorded statement of witnesses. 6. Dilip also sent Tanka, Bina and Dipali to Ratnadip Bhattacharjee, the then Munsiff No.1 at Lakhimpur, for recording their statements under section 164 of the Code of Criminal Procedure and also sent the appellant for recording his confessional statement. Ratnadip recorded the same. Exhibit-10 is that confessional statement and Exhibit-1, 11 and 12 are the statements of Tanka, Bina and Dipali respectively. The dead body was sent for post-mortem examination and after the post-mortem examination, the same was taken to the police station from where the dead body of Mitku was handed over to Kanu Kumar (PW-7) on the next day. 7. Brother-Sunil Kumar of Mitku made the Ejahar (Exhibit-13) before the police station naming the appellant. 8. Dr. Gunin Kumar Gogoi (PW-10) conducted the post-mortem examination on the dead body of Mitku. 7. Brother-Sunil Kumar of Mitku made the Ejahar (Exhibit-13) before the police station naming the appellant. 8. Dr. Gunin Kumar Gogoi (PW-10) conducted the post-mortem examination on the dead body of Mitku. He found the following injuries:- “The neck was only attached to the body with a tag of skin in the left side in the lower part of the neck. The wound was clean cut incised wound. One clean cut incised wound over the left wrist joint medially (5x2x2cm). One clean cut incised wound over the right wrist joint (5x2.5x2cm). Bone and muscles were found cut. Clean cut incised wound over the mid part of the head transverse in dimension (5x2.5cm) upto brain. The bone was separated and brain matter protruded through the wound. Clean cut incised wound 6x1.5cmx scalp deep posteriorally over the neck.” Dr. Gunin Kumar Gogoi in his post mortem examination report exhibit 4 opined that the cause of death was due to shock and haemorrhage cut throat and head injury. 9. On completion of investigation, Dilip submitted chargesheet Exhibit-17, against the appellant under Section 302/341 of Indian Penal Code. 10. During trial, the appellant admitted his guilt and stated that he committed murder of his brother-in-law as he used to torture his sister tremendously. During his statement recorded under Section 313 of the Code of Criminal Procedure he said that after committing the offence he went to the house of Bina and after leaving his bicycle he went to the house of Dipali and later on surrendered before police. He also adduced the evidence of his sister Juri as defense witness. 11. After hearing the learned counsel for the appellant and perusing the record, we do not find sufficient merit in the instant appeal. This we say so because Ratnadip recorded the confessional statement of appellant strictly in accordance with the procedure prescribed under Section 164 of the Code of Criminal Procedure. The confessional statement of appellant reads as follows:- “To whom I have cut was my brother-in-law. My brother-in-law used to give physical assault to my elder sister and she sustained full of injuries. We had no any bad intention against our brother-in-law, but on 18.02.2009, my brother-in-law severely assaulted my elder sister and her head was cut from the backside and her whole body was covered with blood, and then we took my elder sister to hospital by making expenditure from our side. We had no any bad intention against our brother-in-law, but on 18.02.2009, my brother-in-law severely assaulted my elder sister and her head was cut from the backside and her whole body was covered with blood, and then we took my elder sister to hospital by making expenditure from our side. Up to 20th February, my brother-in-law and his family members did not take any information of my elder sister. After two days of the occurrence I lodged one FIR with the In-charge of Khelmati OP and subsequently, in the evening time, I made compromise. On 20th, my brother-in-law was arrested by police and subsequently after going out from the Out Post he made discussion with his family members and thereafter he assaulted our parents and out anger I have killed my brother-in-law. This is my only saying.” 12. From the confessional statement of the appellant it is clear that he assaulted Mitku. He did this out of anger and frustration caused due to the constant and continuous maltreatment of Mitku to his sister-Juri. Ratnadip has categorically deposed that he adhered to the mandatory provisions of law while recording confessional statement and warned the appellant about the implications and outcomes of making such statements and also gave sufficient time of reflection, besides keeping him free from any threat or control of police. From the evidence of Ratnadip it is apparent that the appellant made the confession being aware of the implications whatsoever, of making such statements and he also maintained the same during his examination under section 313 the Code of Criminal Procedure. He has explained as to how he committed the crime and to which places he did go after committing the crime. His evidence is corroborated by the evidence of Bina who stated that the appellant went to her house after the occurrence with Tanka and washed his hands and feet. Thereafter, the appellant and Tanka left her house leaving the bicycle in the backyard of her house. The bicycle was also seized from her house on the next day. Although, Tanka and Dipali turned hostile, but both of them stated before Dilip that both Tanka and the appellant went to her house after the occurrence and also took her blessings after washing the cloths of the appellant. The dead body was found on the road with cut injuries and Dr. Although, Tanka and Dipali turned hostile, but both of them stated before Dilip that both Tanka and the appellant went to her house after the occurrence and also took her blessings after washing the cloths of the appellant. The dead body was found on the road with cut injuries and Dr. Gunin opined that the injuries were caused by sharp weapon and were ante-mortem as well as homicidal in nature. And khukri (Material exhibit- ‘kha’) is such a weapon by which such injuries as found on the body of Mitku could be inflicted. Even, the evidence of Juri would go to prove that the appellant left the hospital following Mitku on the date and time of occurrence and he was angry and frustrated with the acts of Mitku. 13. Therefore, it has been proved beyond reasonable doubt that the appellant alone was the perpetrator of the crime and we have no hesitation but to hold that the conviction and sentence of the appellant is proper and hence not liable to be interfered with. 14. Accordingly, the appeal stands dismissed being devoid of merit.